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Date: 02-19-2021
Case Style:
Rigo Reyna v. The State of Texas
Case Number: 06-20-00090-CR
Judge: Scott E. Stevens
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney: Shelly O'Brien Yeatts
William Rhys Carson
John C. Creuzot
Defendant's Attorney:
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Description:
Texarkana, Texas - Criminal defense attorney represented Rigo Reyna with a Murder charge.
In his first point of error on appeal, Reyna argues that the trial court violated both his
statutory and common law right of allocution. The State argues that Reyna failed to preserve
these complaints, and we agree.
“Allocution” refers to a trial judge affording a criminal defendant the opportunity to
“present his personal plea to the Court in mitigation of punishment before sentence is imposed.”
McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh’g). The statutory
right of allocution is contained in Article 42.07 of the Texas Code of Criminal Procedure, which
requires the defendant to be asked “whether he has anything to say why the sentence should not
be imposed against him” before his sentence is pronounced. TEX. CODE CRIM. PROC. ANN. art.
42.07.
1Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
3
Even so, a complaint about the denial of the right of allocution must be preserved by a
timely request, objection, or motion to the trial court. See TEX. R. APP. P. 33.1; McClintick, 508
S.W.2d at 617–18; Vasquez v. State, 605 S.W.3d 734, 738 (Tex. App.—Houston [1st Dist.]
2020, no pet.); Norton v. State, 434 S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no
pet.); Smith v. State, 352 S.W.3d 55, 71–72 (Tex. App.—Fort Worth 2011, no pet.); see also
Zamarron v. State, No. 05-19-00632-CR, 2020 WL 6280869, at *4 (Tex. App.—Dallas Oct. 27,
2020, no pet.) (mem. op., not designated for publication); Speights v. State, No. 06-19-00019-
CR, 2019 WL 3417362, at *2 (Tex. App.—Texarkana July 30, 2019, no pet.) (mem. op., not
designated for publication).2 As a result, Reyna had the responsibility of clearly conveying his
complaints about the denial of allocution to the trial court, including “the precise and proper
application of the law as well as the underlying rationale.” Pena v. State, 285 S.W.3d 459, 463–
64 (Tex. Crim. App. 2009). This is because, to avoid forfeiting a complaint, the complaining
party must “let the trial judge know what he wants[] [and] why he thinks he is entitled to it, and .
. . do so clearly enough for the judge to understand him at a time when the judge is in the proper
position to do something about it.” Id. at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909
(Tex. Crim. App. 1992)).
Here, because the record shows that Reyna raised no complaints about the denial of
allocution before the trial court, we find them unpreserved. As a result, we overrule Reyna’s
first point of error.
2
“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
4
II. We Modify the Judgment to Reflect that Reyna Pled Not True to the State’s
Punishment Enhancement Allegations
“This Court may modify the trial court’s judgment to make the record speak the truth
when it has the necessary data and information to do so.” Jones v. State, 600 S.W.3d 94, 101
(Tex. App.—Dallas 2020, pet. ref’d) (citing TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d
26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas
1991, pet. ref’d)).
During trial, Reyna pled not true to the State’s punishment enhancement allegations.
Even so, the trial court’s judgment mistakenly shows that Reyna pled true to the allegations. As
a result, Reyna argues that the trial court’s judgment must be modified, and the State concedes
the error. We sustain this point of error and modify the judgment to show the proper nature of
Reyna’s pleas.
Outcome: We modify the trial court’s judgment to reflect that Reyna pled not true to the State’s punishment enhancement allegations. As modified, we affirm the trial court’s judgment.
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